Saturday, August 26, 2006

Welcome Back at Hotel Fig

Each year, the Loyola Law School Student Bar Association arranges to have a Welcome Back party at nearby Figueroa Hotel at 939 South Figueroa Street, also better known as Hotel Fig. When I had gone last year, I knew only a few people, and met perhaps two second year students. This year, the turnout seemed bigger, and I definitely mingled with many more people.

Heck, one first year (who shall remain anonymous) even came up to me and asked if I remembered her from a birthday party I had attened last year. Fortunately, now that she's a student, I'll have less excuse to forget.

The walk over from school is a short one. The major cross-streets are Figueroa (of course) and Olympic (this is a view from the southwestern corner):

Hotel Fig looks small-ish at first, but the pool area, which is where the party was, is through this hallway:

At the last light of day, the party had yet to get going. Once things got swinging, though, the pool area was standing room only. Much fun was had.

It was great to see all the advanced students again. Welcome back, and a hearty welcome to all the first years who found time to join us at the party. This is only the beginning of a journey, and you'll find fellow travelers along the way that, with some luck, will be traveling with you far beyond law school.

Friday, August 25, 2006


For those who are interested in a career in tax law or even personal injury law, the D.C. Circuit has ruled that non-physical personal injury (emotional distress, loss of reputation) compensation unrelated to lost wages and earnings is not "income" within the meaning of Amendment XVI, rendering § 104(a)(2) of the Internal Revenue Code unconstitutional. This would appear to be a win for the "little guy".

TaxProf Blog has more.

[] []

Monday, August 21, 2006

Back to School

It is Monday 21 August 2006, and it's time to go back to school! The Stud will be starting second year today; this semester's classes are Constitutional Law II, Evidence, Ethical Lawyering, and International Intellectual Property. It's been a fun summer, but it's time to get serious again, and aim to do better this year than the previous year.

For the students beginning their first year, Austin Groothuis has some advice for new students. Also, blog pal Mad Minerva sends a link to a PDF file at the Volokh Conspiracy; the file contains advice on how to read a judicial opinion.

Best of luck, everyone!


Wednesday, August 16, 2006


I've been playing with directly pasting portions of my outline into Blogger instead of doing the formatting by hand. I figure, if Word has already gone to the trouble, who am I to argue?

So far, I've just updated the Civil Procedure Outline; I'll try to get the rest done before school starts up again.

[] []

Outline - Civil Procedure - X - Trial Process

Civil Procedure (2005-2006)


A. Rule 56 – Motion for Summary Judgment (Mo4SJ)

1. StandardNo genuine issue of material fact, and movant entitled to judgment as a matter of law

a. “Material fact” – essential element of claim or defense

b. “Genuine issue” – Actual (objective) and good faith (subjective) controversy; dispute is one which a reasonable jury could resolve in favor of nonmovant. Note: The fact a jury might disbelief a witness is not a “genuine issue”.

2. Policy – For efficiency, eliminate claims and defenses that would not survive Mo4JMOL.

3. Adickes v. S. H. Kress & Co. – Restaurateurs defending against conspiracy claim by white woman who came in with black girls not entitled to summary judgment where evidence does not establish absence of genuine issue, even where no opposing evidence is presented

a. Movant bears burden of showing absence of dispute of fact, so any scintilla of evidence that a jury could interpret in favor of non-movant defeats Mo4SJ

b. Judge should not weigh evidence or assess credibility, but take all possible inferences in favor of non-movant

4. Celotex Corp. v. Catrett – Where movant plaintiff had no evidence on an essential element of case, could not have survived Mo4JMOL, no trial needed, summary judgment proper

5. Moving party’s burden of establishing absence of “genuine issue” [Celotex Corp. v. Catrett, Brennan, J. dissenting]:

a. Initial burden of production (shifts to non-movant is satisfied by movant):

i. if movant has burden of persuasion at trial, must support with credible evidence

ii. if non-movant has burden of persuasion at trial, movant may satisfy burden of production by:

a) submitting affirmative evidence negating essential element of non-movant’s claim; or

b) demonstrating non-movant’s evidence insufficient to establish essential claim, through lack of affirmative of evidence, or through admissions, interrogatories, and other on-record exchanges between parties

b. Ultimate burden of persuasion

6. Anderson v. Liberty Lobby – Mere scintilla in favor of non-movant not enough (contra Adickes, this is the modern rule)

B. Burdens

1. Pleading

a. What must go in a pleading: notice pleading for most, heightened pleading for Rule 9

b. Who must put it in pleading:

i. Plaintiff: claims or affirmative defenses to counterclaims

ii. Defendant: counterclaims or affirmative defenses to claims

2. Production

a. Movant without burden of proof must show non-movant cannot prove element of claim/defense, either with evidence negating or by pointing to absence of recorded evidence

b. non-movant with burden of proof must show evidence from which a reasonable jury could find for it

3. Proof

a. Level of proof required to persuade fact finder of elements of claim, damages or defenses (in most civil cases, preponderance)

b. Follows burden of pleading in parties burdened

C. The Jury

1. Right to Trial by Jury

a. Where not available by Constitution, can be granted by Congressional statute

b. Decided by issue, not by case

2. Historical Test [Curtis v. Loether – Landlord who refused to rent to black women in violation of Civil Rights Act entitled to jury trial]:

a. Law or equity?

i. Which court would have tried the case before 1791?

ii. If unclear, reason by analogy.

b. If legal, what type of relief sought?

i. Compensatory damages are legal relief; jury trial

ii. Where statute specifies remedy is equitable, no jury right

a) back pay as restitution is equitable, awarded by judge

b) some causes of action existing in 1791 without monetary relief were at law

c) jury decides whether to impose civil penalties but judge decides amount

c. Complexity test: Practical abilities and limitations of juries? [Markman v. Westview Instruments, Inc.]

3. Mechanics

a. Waivable; must be demanded in pleadings or within 10 days of last pleading on issue

b. Any party can demand; cannot withdraw demand without consent of other parties

c. Due Process default minimum of 6 (waivable)

d. Unanimity required unless by consent

4. Rule 50 – Judgment as a Matter of Law (Mo4JMOL)

a. Mo4JMOL at close of plaintiff’s case-in-chief tests whether plaintiff met burden of producing at trial sufficient evidence for a reasonable jury to find for plaintiff on each element of his claim.

b. Mo4JMOL at close of defendant’s case-in-chief tests same as to defendant’s affirmative defenses.

c. Mo4JMOL at close of evidence and renewed Motion for JMOL: taking all reasonable inferences from evidence at trial in favor of non-movant but uncontradicted, unimpeached evidence from disinterested witnesses in favor of movant, no reasonable juror could find for non-movant.

D. Motions Flowchart

1. Pretrial

a. Plaintiff Mo4SJ. High standard of persuading judge that defendant will be unable to produce sufficient evidence at trial to survive Mo4JMOL. (see 2-b-i)

b. Defendant Mo4SJ. Must show plaintiff will be unable to satisfy burden of production, so that defendant would succeed on Mo4JMOL. (see 2-a-i)

2. Trial

a. Plaintiff presents case. At end of evidence, determine if burden of production met.

i. No: Defendant Mo4JMOL. (see 1-b)

ii. Yes: Case proceeds.

b. Defendant presents case. At end of evidence, determine if evidence sufficient to rebut essential element of plaintiff’s case.

i. No: Plaintiff Mo4JMOL. (see 1-a)

ii. Yes: Evidence closes.

c. If burdens of production met, case goes to fact finder.

E. Preclusion

1. Claim Preclusion – Res judicata

a. Conditions

i. Valid final judgment in first forum

a) Notice

b) SMJ

c) PJ

ii. Same parties

iii. Same claims

b. Cases

i. McConnell v. Travelers Indemnity Co. – Where state law forbids splitting torts claims, dismissal with prejudice in state court of one part of claim precludes the other part in federal court.

ii. Federated Department Stores v. Moitie – Where plaintiff loses in federal court and does not appeal, then files again in state court, and defendant removes to federal court, dismissal for claim preclusion is proper.

2. Issue Preclusion – Collateral Estoppel

a. Issue of fact

b. Actually litigated

c. Full and fair opportunity to be litigated

d. Final and valid judgment

i. Notice

ii. SMJ

iii. PJ

e. Issue was essential to judgment

[] [] [] []

Outline - Civil Procedure - IX - Discovery

Civil Procedure (2005-2006)


A. Rule 26(b)(3) – Work Product Protection

1. Opinion WPMay not discover impressions, opinions, or theories of attorney, unless there is extreme need and hardship:

a. probably never in cases for which WP was created

b. case-by-case determination whether the protection is overcome in subsequent litigation where opinions in WP are at issue

c. Holmgren v. State Farm Mutual Automobile Insurance Co. – Opinion WP may be discoverable and admissible where mental impressions are at issue in case and need for material is compelling

2. Ordinary WP – May discover other material prepared in anticipation of litigation only if there is:

a. substantial need (ordinary wear-and-tear on witness memories are not substantial need), and

b. undue hardship to obtain by other means

3. Hickman v. Taylor – Where counsel for plaintiff could have interviewed witnesses himself, cannot ask for copies of written statements from defense counsel.

B. Attorney-Client Privilege

1. Elements

a. Communication

b. Between client (or potential client) and lawyer (or lawyer’s representatives)

c. Without presence of others

d. For purpose of obtaining legal advice (not for purpose of committing crime or tort)

2. Only applies to communication, not facts

3. Privilege belongs to client, who can waive it

C. Attorney-Client Privilege for Corporations – Communications between attorney and employees is [Upjohn Co. v. United States – Corporation which policed itself not required to relieve IRS of its job]:

1. Needed for attorney to give legal advice to corporation

2. About information within scope of employee’s employment

3. Understood by employee to be for the purpose of legal advice to corporation

4. Understood by employee to be confidential

D. Other Privileges

1. Doctor-patient

2. Priest-penitent

3. Husband-wife

4. etc.

[] [] [] []

Outline - Civil Procedure - VIII - Supplemental Jurisdiction - 28 U.S.C. § 1367

Civil Procedure (2005-2006)


A. Required Elements

1. “Trunk or “original” or “federal” claim over which the federal court has original SMJ (federal question, diversity, or “other”), and

2. “Branch” or “supplemental” or “nonfederal” claim is part of same case or controversy as trunk claim

a. “common nucleus of operative facts”

b. logical relationship between claims (broader than “same transaction or occurrence”)

B. Diversity Trunk Exception – If the trunk is solely based on diversity, and the following would destroy diversity:

1. Original plaintiff may not bring supplemental claims against persons made parties under Rule 14 (impleader), Rule 19 (compulsory joinder), Rule 20 (permissive joinder), or Rule 24 (intervention); and

2. New plaintiffs proposed to be added under Rule 19 (compulsory joinder) or seeking to intervene as plaintiffs under Rule 24 may not bring supplemental claims.

3. Owen Equipment & Erection Co. v. Kroger – Where case as amended impleaded defendant whose citizenship destroyed diversity, case must be dismissed.

4. Exxon Mobil Corp. v. Allapattah Services, Inc.

a. Plaintiffs joined under Rule 20 do not contaminate case

b. Non-diverse plaintiff class members under Rule 23 do not contaminate case

C. Discretion to Decline Supplemental Jurisdiction

1. Novel or complex state law

2. Supplemental claim predominates

3. Original trunk claims dismissed

4. Other compelling reasons in exceptional circumstances

D. Statute of Limitations Tolling Provision – Tolls SoL for supplemental and related claims for 30 days after dismissal to give claimant opportunity to re-file in state court

E. Flow Chart

1. If independent SMJ exists for each claim, no need to analyze under 1367

2. If no independent SMJ exists for each claim, analyze under 1367 only if trunk satisfies independent SMJ

3. Analyze branch claims under 1367(b)

a. If defendant was joined under Rule 14, 19, 20, or 24, no supplemental jurisdiction

b. If plaintiff joined, analyze under Exxon (Rule 20, 23 plaintiffs okay as long as one member meets diversity)

c. Under 1367(c), court may exercise discretion

[] [] [] []

Outline - Civil Procedure - VII - Joinder

Civil Procedure (2005-2006)


A. Claim Joinder

1. Rule 18

a. Once there is one claim, a party may join as many claims as it has against the opponent.

b. Once there is a claim, a party may join as many remedies as it may have against opponent.

2. SMJ required for each claim

3. If claim not related, court may sever by Rule 42

B. Counterclaims and Cross-Claims

1. Rule 13(a) – Compulsory Counterclaim

a. At the time of serving Answer

b. Arising from “same transaction or occurrence” – Logical relationship test

i. Precise identity not required as long as claims are logically connected. [Appletree v. City of Hartford – Police officer can counterclaim for libel against plaintiff who filed for false arrest]

ii. Essential facts of various claims are “so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit.” [Hart v. Clayton-Parker – Where claim is for abusive debt collection practice under federal statute, and counterclaim is for private duty under state law, facts not logically connected, counterclaim permissive]

c. Does not require adding a party court has no PJ over

d. Rule preclusion: Must assert compulsory counterclaim unless:

i. claim does not yet exist when pleading was served; or

ii. claim requires unobtainable new parties; or

iii. claim is pending elsewhere; or

iv. suit was under in rem jurisdiction and pleader is asserting no counterclaims

e. No need to find SMJ (covered by supplemental jurisdiction)

f. In other words:

i. Against an opposing party

ii. Same transaction or occurrence

iii. Exist at time opposing party’s pleading is served

2. Rule 13(b) – Permissive Counterclaim

a. Does not require “same transaction or occurrence”

b. SMJ required

3. Rule 13(c) – Relief – Counterclaim need demand relief less exceeding in amount or different in kind from original claim

4. Rule 13(e) (with Rule 15(d)) – Immature Counterclaim – Claim which matured or was acquired by pleader after serving pleading may become counterclaim by permission of court

5. Rule 13(f) (with Rule 15) – Omitted Counterclaim – Counterclaim omitted due to oversight, inadvertence, or excusable neglect may be added by amendment by leave of court

6. Rule 13(g) – Cross-Claim

a. Must arise from “same transaction or occurrence” as main claim

b. Must not be opposing parties

c. Works partly like impleader under Rule 14 (may claim cross-claim defendant is liable in part or total to cross-claim plaintiff for claims against him by original plaintiff)

d. Once properly filed, must add related claims to avoid claim preclusion

e. Once properly filed, can file other claims under Rule 18 subject to severance under Rule 42

f. Never compulsory

g. Counterclaims to cross-claims follow Rules 13(a) and (b)

7. Rule 13(h) – Joinder of Additional Parties – Party asserting counterclaim or cross-claim may add new parties as defendants to that claim under Rules 19 and 20.

8. Rule 13(i) – Separate Trials – Claim may be severed even if claim lacks independent SMJ.

9. California: Everything is a cross-complaint

C. Rule 14 – Impleader – Defendant may act as 3rd party plaintiff and implead 3rd party defendant if claim will be derivative of primary claim.

1. In response to 3rd party complaint, 3rd party defendant:

a. Must assert any defenses it has against 3rd party plaintiff under Rule 12

b. Must/may assert any counterclaims against 3rd party plaintiff under Rules 13(a) and (b)

c. May assert any cross-claims against other 3rd party defendants under Rules 13 and 18

d. May assert any defenses 3rd party plaintiff has against plaintiff (but not lack of PJ or lack of notice, which are personal)

e. May assert any claims against Plaintiff from same transaction or occurrence as plaintiff’s claim against 3rd party plaintiff

2. Plaintiff may assert:

a. Any claim against 3rd party defendant from same transaction or occurrence as plaintiff’s claim against 3rd party plaintiff

b. 3rd party defendant may/must assert defenses, counterclaims, and cross-claims

3. When third party’s conduct is complete defense against defendant’s liability, it should be a defense, and impleader is improper. [Toberman v. Copas – Defendant in auto accident tried to implead trucking company on theory it is liable instead of him]

4. Where more than two explanations exist, impleader of third party to establish either/or liability is improper. [United States v. Joe Grasso & Son, Inc. – Shrimp boat captains’ liability does not follow automatically from lack of liability on part of shrimp boat owners]

D. Rule 20 – Permissive Party Joinder

1. All persons may join as plaintiff if:

a. They assert rights from same transaction or occurrence; and

b. Any question of law or fact common to all plaintiffs will arise

2. All persons may be joined as defendant if:

a. Right asserted against them arise from same transaction or occurrence; and

b. Any question of law or fact common to all defendants will arise

3. (b) Court can prevent delay, expense or prejudice by ordering separate trials, etc.

4. Mosley v. General Motors Corp. – Class action Title VII discrimination suit arises from same question of law or fact even where individual claims are weak.

E. Rule 19 – Compulsory Party Joinder

1. (a) Unless joinder is infeasible because nonparty is:

a. beyond PJ of court or

b. adding nonparty would deprive court of SMJ or

c. after joining, venue becomes improper and nonparty objects,

Court must join as party if

d. complete relief impossible without nonparty, or

e. nonparty has interest relating to subject of suit and if nonparty left out, then

i. nonparty’s ability to protect interest may be practically impaired, or

ii. current parties would be at substantial risk of double or inconsistent obligations

2. (b) If joinder is not feasible, court must decide whether nonparty is indispensable:

a. if indispensable, must dismiss case for nonjoinder

b. if not indispensable, keep going with nonparty

3. Indispensability factors:

a. prejudice to nonparty from judgment without nonparty

b. prejudice to current parties from judgment without nonparty

c. the extent to which the court can lessen prejudice by shaping relief or other measures

d. adequacy of judgment without nonparty

e. adequacy of plaintiff’s remedy if the action is dismissed for nonjoinder

4. Temple v. Synthes Corp. – Joint tortfeasors in case of broken surgical implant are not indispensable parties.

[] [] [] []